ACLU: Kansas’ gay marriage laws should be stricken from book

Wichita  The American Civil Liberties Union asked a federal judge to explicitly strike down Kansas' gay marriage laws, saying even though the U.S. Supreme Court legalized same-sex marriage last month, getting rid of Kansas' moot statutes would help avoid any possible confusion about the matter in the future.

Kansas asked the court last week to dismiss the ACLU's lawsuit challenging its same-sex marriage laws, saying Kansas has recognized such marriages since the June 26 Supreme Court ruling.

In a response filed Tuesday, the ACLU points out that in other states facing similar lawsuits, courts have been entering final judgments striking down the states' gay marriage bans, not simply dismissing the case.

"There is essentially no direction and confusion on recognition of same-sex marriages in Kansas, and that is a problem," ACLU legal director Doug Bonney said Wednesday. "It is fairly clear the state of Kansas wants to do the absolute bare minimum recognition of these marriages that is possible and still be able to make some kind of claim that they are in compliance."

The ACLU argued in its filing that neither the state's governor nor its attorney general has issued any clear directives or statements that the state of Kansas acknowledges the binding effect of the Supreme Court's ruling. It said Kansas Gov. Sam Brownback's statements on the issue have been "equivocal at best."

Their court filing notes that after the Supreme Court ruling, Missouri Gov. Jay Nixon, who is a Democrat, issued an executive order that all departments, agencies, boards and commissions immediately take all necessary measures to comply with the decision in all operations.

By contrast, the conservative Republican governor in Kansas blasted what he called "activist courts" when the decision came down and said his state would review the ruling to understand its effects on its residents. Brownback supports Kansas' ban on gay marriage and has noted repeatedly that voters in 2005 overwhelmingly approved an amendment to the state constitution to reinforce it. Last week, the governor issued an executive order regarding the rights of religious organizations to refuse to participate in same-sex marriages.

The governor's office did not immediately respond to a Wednesday email seeking comment.

Jennifer Rapp, the spokeswoman for the Kansas attorney general's office, said in an email that the plaintiffs' "assertions are not correct," but she did not elaborate. She noted that the court has given a July 21 deadline to reply, "and we will."

Kansas asked the court in a July 9 filing to dismiss the ACLU lawsuit because of its now "voluntary compliance" with all aspects of the recent Supreme Court decision. The state said Kansas now issues marriage licenses to same-sex couples, accepts joint tax returns from them, allows driver's license name changes and accepts applications on state health insurance coverage for same-sex spouses, according to the state's filing.

But the ACLU argued that "as long as these laws remain on the books, there is a real and on-going possibility that some lesser official, employee, or agent of the State of Kansas will enforce them."